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Unitary Patent Package – The Ratification Game (Malta Ratifies the UPC Agreement)
Update (10 December 2014)
According to the website of the Council of the European Union, Malta deposited its instrument of ratification on 9 December 2014 to become the sixth country to complete its ratification formalities. Malta joins Denmark, Belgium, Sweden, France and Austria as one of the six countries who have completed their ratification processes.
Now that Malta has joined the “ratification” group it means that the “Malta Problem”, which is discussed in depth here, will kick in once the unitary patent system is up and running. In a nutshell, no European patent application filed before 1 March 2007, and which is still pending, will be eligible to become a unitary patent (assuming it grants after the unitary patent system goes live).
Recent unitary patent themed seminars have given the impression that additional UPC ratifications in 2014 were unexpected so this news is something of a surprise. However, we had heard suggestions back in January this year that Malta might have ratified. If the news story we picked up on earlier in the year was correct then presumably Malta delayed depositing its instrument of ratification for nearly a year for some reason.
IPcopy’s ratification infographic has been updated to reflect the news from Malta (for an answer to the question “What’s up with this infographic?“, please see the bottom of the post!”).
Unitary Patent Package – The Ratification Game
We previously reported that both France and Malta had ratified the unified patent court agreement. Despite this we had held off updating the “Ratification” Game post until the European Commission website showed that further instruments of ratification had actually been deposited in Brussels.
So, who would grab second place after Austria? Malta or France or maybe an outsider?
Well, we can now reveal that (more…)
And then there were three? President Hollande signs off on ratification of UPC Agreement
Following the recent adoption of the Agreement of the Unified Patent Court by the French National Assembly comes news that the French President, François Hollande, has now promulgated the law by signing off on the text in Paris on 24th February 2014.
Has Malta ratified the Unified Patent Court Agreement?
So far, Austria is the only state to have ratified the UPC Agreement, with the remaining UPC countries being slow to take the second spot on the ratification podium. But unconfirmed rumours (with thanks to Michael Carter of Wragge & Co for the heads-up) are now circulating that Malta may have ratified the UPC Agreement.
An article in the Malta Independent explains that the Agreement was discussed in the Maltese parliament, and states that “PN MP Jason Azzopardi said that he had signed the ratification on behalf of a PN-led government.”
A delve into the Maltese Parliament’s website reveals that yesterday’s proceedings (21 January 2014) included a debate on Motion 78 -Agreement on a Unified Patent Court – Presented by the Parliamentary Secretary for Justice. Among the text of the motion (thanks Google tranlsate – my Maltese just isn’t what it used to be) is the statement that “Malta has now passed the ratification process , to be carried out in accordance with article 3 of the Act on Ratification Treaties ( Cap 304 ) Authorizing the Maltese Parliament to ratify the Agreement ( Patent Court Industrial unified ) Unified Patent Court ( UPC ) which was signed on 19 February 2013“.
We haven’t been able to confirm the ratification just yet, but all signs indicate that Malta has indeed ratified the Agreement and taken the number 2 spot…
Emily Weal 22 January 2014
Why Malta could inadvertently block your unitary patent
You may have noticed that over here at IPCopy, we’ve been playing with the Unitary Patent Regulation, and testing it to its limits. We’ve already noted some quirks, including the fact that a patentee could potentially opt out of the unified patent court until 2047, and that if an infringement action is brought by an exclusive licensee, bifurcation is all but forced on the defendant.
But this is perhaps the one that’s baked IPCopy’s collective noodle the most so far: assuming that ratification (of the unified patent court agreement) proceeds in time for the Unitary Patent Regulation to come into force 1 January 2014, it appears to us that around one third of the patents that grant that year, and potentially even as many as half, will not actually be eligible for unitary patent protection*.
“How can this be?” I hear you cry! Well it’s all Malta’s “fault”, and here’s why… [we cannot help but think we’ve missed something in the analysis below so feel free to chip in with your thoughts in the comments section!]